Introduces employers’ health and safety obligations in the UK
There is no one statute specifically and exclusively covering the issue of stress in the workplace. Legal duties arising form the law of negligence and express or implied terms in the contract of employment are relevant to stress claims. The law governing stress has, in the main, evolved from case law rather than legislation - see the related Q&A on what legal duties do employees use to base stress claims on.
However, examples of legislation which have a potential impact on this area include:
- the Health and Safety at Work etc. Act 1974
- the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) and
- the disability discrimination provisions of the Equality Act 2010.
The Fatal Accidents Act 1976 has also been used to claim compensation in cases of stress-related suicides by employees. The Protection from Harassment Act 1997 has also been used in some extreme cases of harassment leading to stress and depression.
At a European Union (EU) level, current legislation under the European framework directive 89/391 on the introduction of measures to encourage improvements in the health and safety of workers at work covers work-related stress and its causes, in addition to other risks to health and safety. The EU social partners have also signed a framework voluntary agreement on stress.
What is stress and is it a problem in the UK workplace?
Forty million people in the European Union report that they have suffered from stress. Stress in the workplace in the UK and days lost to stress has established itself as one of the key issues for employers and their advisers with a number of high-profile cases in recent years. Stress is the single biggest cause of sickness in the UK.
The Labour Force Survey revealed that in 2014/2015 stress accounted for 35% of all work related ill- health cases and 43% of all working days lost in the British workplace. The total number of working days lost due to stress in 2014/15 was 9.9 million days. This equated to an average of 23 days lost per case. Stress is most common in public service industries and the occupations with the highest rates of total cases of work-related stress were health professionals (in particular nurses), teaching and educational professions and caring services (in particular social care and public administration). Media professionals show higher levels of stress too. See statistics on HSE website.
The annual CIPD Absence management survey 2015 published in October 2015 found that two-fifths of organisations reported an increase in stress-related absence over the past year, rising to half of the public sector. A similar proportion claim an increase in reported mental health problems.
The survey also showed that most organisations are taking some action to promote good mental health and/or support employees with mental health problems.
Workload is the most common cause of stress, particularly in private and public services, followed by non-work relationships/family, management style and relationships at work.
Although stress means different things to different people, the HSE have usefully defined stress as 'the reaction people have to excessive pressures or other types of demand placed on them'. Stress is not a disease, although ultimately if it is not dealt with it can lead to physical and/or mental ill health and suicide.
What legal duties do employees use to base stress claims on?
Most stress claims arise under the breaches of the law known as contract or negligence. However, there are three main types of duties employees may use as a basis for a stress claim:
Employers must take such steps as are reasonably necessary to take care of the safety of their employees. If they breach that duty they may be sued for a claim in negligence for damages. The duty extends to both physical and mental health.
There are also implied terms in a contract of employment that would be relevant to stress claims for example:
The implied duty regarding health and safety
In all contracts of employment there is an implied term that the employer will provide the employee with a safe system of work. A failure to take reasonable steps to protect the employee from stress may result in the employee claiming breach of that term.
The implied duty of mutual trust and confidence
This implied duty means that the employment relationship is based on trust and confidence, and an employer will not, without reasonable and proper cause, behave in a manner that is calculated or is likely to destroy or seriously damage that trust and confidence.
Under statute numerous further duties arise, for example:
Under Health and Safety at Work etc. Act 1974 Section 2, employers have an obligation to provide and maintain systems of work and a working environment which are, as far as is reasonably practicable, safe and without risk to health. The duty extends to providing maintenance of safe plant and systems of work, information, training, supervision and adequate support. The general duty to provide a safe and healthy working environment, including risk assessment, will apply to the prevention of stress-related ill health. Employers must assess the risk of stress-related ill health arising from work activities and take measures to control that risk. Carrying out a proper risk assessment for stress could enable an employer to avoid prosecution and litigation.
An employee can obtain damages for stress related claims under the breach of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) which gives employers duties to assess the risk of stress-related ill-health arising from work activities.
Another statute which has been used in this area is the Fatal Accidents Act 1976 where an employee suffered from depression (caused by an employer's negligence) and then committed suicide. The House of Lords held that suicide is no longer regarded as necessarily breaking what is known as the legal chain of causation linking the employer’s acts and the harm to the employee - see Corr v IBC Vehicles Ltd (unreported,  UKHL 13, 27 February 2008, CA).
For public bodies such as local authorities, public duties may also arise. In Connor v Surrey County Council  IRLR, 521, CA the head teacher (at a mainly Muslim school) had serious differences of opinion with the governing body, which was determined to increase the role of the Muslim religion in the school. She informed the council numerous times that the situation was intolerable and eventually was signed off work with clinical depression. She brought a claim against the council for negligence. The Court of Appeal considered the dividing line between the Council's public law duties and the law of negligence. The Council was found to have been negligent towards the head teacher by failing to establish a new interim board of school governors more promptly. This was also a breach of the public law duties under the School Standards and Frameworks Act 1998. (Although not all breaches of public law duties will lead to employees claiming in private actions for damages).
Very few workplace stress cases have been brought under the under the Protection from Harassment Act 1997. However, there have been some. For example, in Veakins v Kier Islington Ltd ( IRLR, 132, CA a trainee electrician was persistently told off in public, picked on, had letters of complaint torn up in front of her without reading it etc. She went on sick leave for depression and eventually was sacked. She then brought a successful claim under the Protection from Harassment Act 1997 Section 1(1). Most cases like this would occur in the employment tribunal and it remains unusual to use this Act for workplace stress claims. However, with such harassment claims the employee does not have to demonstrate foreseeability or show that they have suffered from a recognised medical condition as a result of the harassment, whereas in negligence based claims they will have to do so.
Other legislation may also have an impact, such as the Working Time Regulations 1998. For example in Hone v Six Continents Retail Ltd  IRLR 49, CA the employer was guilty of a serious breach of the Working Time Regulations restrictions on weekly working time. The employee who was a licensed house manager kept records that indicated that he was working approximately 90 hours a week. He asked for an assistant manager which the employer ignored. The employee eventually collapsed at work and did not return to the employer. The Court of Appeal held that the injury suffered was reasonably foreseeable and he recovered damages for psychiatric injury caused by stress at work. In particular, the Working Time Regulations are a material factor to be taken into account in deciding whether psychiatric injury was reasonably foreseeable for the purposes of a stress claim. An employer may be exposed where they require the employee to work more than 48 hours a week. The obvious purpose of the Working Time Regulations is to protect the welfare and health of employees.
What is the level of compensation for stress related claims?
The level of compensation can be high, particularly where the employee never works again. The case of Walker v Northumberland County Council  IRLR 35, HC is probably one of the the best known examples of a stress claim. Mr Walker was a social worker with a heavy workload of child abuse cases. He had a nervous breakdown and returned to work some five months later having been promised assistance and a reduced workload. The promised assistance did not materialise and Mr Walker suffered another breakdown. The High Court held that the Council was liable for psychiatric damage caused to him through stress. The Council had failed to provide assistance or reduce his workload and therefore was in breach of their duty of care. The risk was reasonably foreseeable. The Council made a payment of £175,000 to the employee in an out-of-court settlement.
This case made it clear that an employer's common law duty to provide a safe system of working for employees includes a duty to protect them from psychiatric harm and that failure to do this could lead to a claim where the harm is reasonably foreseeable.
Another important example is provided by the case of Green v DB Services Ltd  IRLR 764 1 August 2006. In this case, a secretary was awarded over £850,000 in her claim against Deutsche Bank. She had suffered stress and a nervous breakdown after being bullied by colleagues. The employer was found to be vicariously liable for that bullying and in breach of its duty of care.
Other examples include:
- An academic settled out of court with his former employer Staffordshire University for £110,000. He had been given more and more work following the suicide of a colleague and the departures of other members of staff. He was working a 65 hour week, and was signed off sick with stress. He later decided to pursue a claim against the university, which has now been settled out of court for £110,000.
- Before the collapse of the newspaper News of the World, a former sports reporter was awarded almost £792,736 for unfair dismissal and disability discrimination arising from stress. He had been dismissed while on long-term sick leave for stress related depression following bullying involving the editor.
Also see Barber v Somerset County Council referred to in the related Q&A How pro-active should an employer be to take steps to avoid stress-related claims?.
Is any level of stress sufficient to warrant a claim and how foreseeable does the disorder have to be?
Different people can cope with different levels of stress. It is not enough for an employee merely to prove normal levels of 'stress' as used in an everyday sense. The stress must cause a recognised disorder or recognised psychiatric illness. There also has to be a serious breach of the duty to take care of an employee for the claim to succeed. The employee would have to establish that the employer knew or should have known that they were putting the employee in a situation where there was a foreseeable danger of the employee suffering from stress.
Case law examples
In Sutherland v Hatton and other cases  IRLR 263, CA the Court of Appeal provided useful guidance on the issue of foreseeability and damages for psychiatric injury arising from occupational stress:
- An employer is entitled to assume that an employee can cope with the normal pressures of a job role, unless
- the employer is in possession of knowledge that suggests that the particular employee is less able to do so and might suffer stress at work or psychiatric illness.
- If an employer is in possession of such knowledge then it has a duty to take reasonable steps or measures to prevent an employee suffering illness.
- An employer does not need to make detailed inquiries of the employee or his or her medical adviser before being able to foresee stress.
An employer may still be liable even if an employee has not been absent from work with stress if it is clear that the employer has breached the duty of care and the injury is foreseeable.
Since Sutherland v Hatton, other courts have tended to limit the scope of stress at work claims. For example, in Deadman v Bristol City Council  EWCA Civ 822 31 July 2007, the Court of Appeal found that, even though Bristol City Council had breached a term of the employee's contract, it was not reasonably foreseeable that this breach would have adverse consequences on the employee's health.
It is best for employers to consider the guidance in Sutherland v Hatton as very helpful guidance but not as binding concrete legal obligations, as each case will depend on its own facts. See Hartman v South Essex Mental Health and Community Care NHS Trust and 5 other cases at  IRLR 293 which emphasised that basically:
- liability for psychiatric injury caused by stress at work is no different in principle from liability for physical injury and
- the employer’s breach of duty must give rise to foreseeable injury and
- the fact that an employee suffered stress at work and that the employer was in breach of duty does not mean that the employer is liable to the employee if the injury was not foreseeable.
Another good example comes from the conjoined Hartman cases. In one of those cases namely Melville v The Home Office IRLR 293, CA a prison officer was diagnosed as a stress related illness after performing duties which included cutting down the bodies of prisoners who had committed suicide including attempting revival. He suffered from nightmares and flashbacks and retired on ill health grounds at the age of 49. Foreseeability was in issue as the officer had given no prior indication of developing a stress related illness. However guidance documents showed that the Home Office recognised that officers who were called on to deal with suicides in prison might sustain injury to their mental health and would require support including help from an internal care team.
It was held that it was reasonably foreseeable that the officer might suffer psychiatric damage. The Court of Appeal concluded that the mere fact that an employer offers a general occupational health service to deal with employee stress does not mean that the employer has foreseen a risk of psychiatric injury due to stress at work to any particular individual. (In some cases the availability of such a service may mean that the employer is unlikely to be found in breach even if harm is foreseeable). However in this case psychiatric injury to the officer was foreseeable. Each case must therefore be decided on its own facts.
In MacLennan v Hartford Europe Ltd (unreported,  EWHC 346 24 February 2012, HC) a hard-working and competent HR manager who was popular and professionally esteemed developed chronic fatigue syndrome. However the High Court held there was an insufficient link between the illness and her work stress.
An example of an employer not being liable for psychiatric illness caused by occupational stress comes from Easton v B&Q plc (unreported,  EWHC 449, HC).
A successful superstore manager became ill through occupational stress. He was absent from work for five months with depression, then returned on a phased basis to a less busy store than his previous one. He was unable to cope, had a relapse and was re-certified as unfit for work due to depression. He alleged this was due to the negligence and/or breach of statutory duty on the part of his employer and relied on the lack of risk assessment by the employer in relation to stress.
Following Hatton was the injury was reasonably foreseeable by the employer?. According to the High Court judge:
- an employer has no general obligation to make searching or intrusive enquiries and may take at face value what an employee tells him
- an employee who returns to work after a period of sickness is usually implying that he believes himself to be fit to return to the work he was doing before.
On the facts of this case, the claim failed at the first hurdle 'foreseeability' because of the employee’s lengthy managerial career with no psychiatric history. Also, given the high standard of proof required, the relapse was also not foreseeable by the employer.
The manager had not made sufficient efforts to notify the employer of any symptoms as required in the employer's document about managing stress and a wider risk assessment would therefore have had no effect on the outcome.
Employers should therefore be extremely pro-active about managing stress, but should not worry that they will be held liable unfairly. If there is an insufficient link between an employee’s development of a stress related illness and the stress suffered at work, the illness will not be foreseeable.
How pro-active should an employer be to take steps to avoid stress-related claims?
The general benefits to employers of tackling stress include improved staff commitment, performance, productivity, recruitment and retention. However, all employers have a legal duty be pro-active and to take the initiative rather than simply adopting a re-active approach. It is in employers’ interests to manage stress at work pro-actively, especially in a tough economic environment where many employees are under more pressure. Employers who do not manage stress risk low morale and losing key employees through high absence levels and employee turnover. They also risk expensive personal injury and other claims.
Line managers are essential to help employers identify, prevent and manage stress within an organisation. They see the problems causing the stress and should notice changes in staff behaviour that reveal a stress-related problem. Line managers can also be the cause of their employees' stress.
For further information on assessing how effective line mangers are in this area, see the related Q&A What action can an employer take to avoid stress-related claims?.
This issue of how pro-active employers should be has been the subject of much case law. See the conjoined cases of Hartman v South Essex Mental Health and Community Care NHS Trust referred to in the related FAQ Is any level of stress sufficient to warrant a claim and how foreseeable does the disorder have to be? and the following case.
In Barber v Somerset County Council  UKHL 13 1 April 2004 the House of Lords held that as soon as an employer knows an employee is in danger of suffering psychiatric injury from occupational stress the employer was under a duty of care to take action to alleviate that stress, or be liable to pay damages for any failure to do so. An employee had been head of the maths department at a secondary school. After a school re-organisation he became 'maths co-ordinator', carrying out the same duties together with extra responsibility for publicity and public relations for the school. He was regularly working between 61 and 70 hours a week. A key issue in the case was whether the school had a duty to check if he was still suffering from stress after the summer holiday. Before the summer holiday he had been off with stress and complained to the school management about the pressure he was under. It was held the school did have a duty to check whether he was still suffering from stress after the summer holidays. At the very least the condition should be monitored, the workload should be reduced and sympathetic inquiries about the employee should be made when he returned to work after being away with stress.
Can an employee whose complaint of stress has been ignored by their employer resign and claim constructive unfair dismissal as well as compensation in negligence and contract?
Yes, an employee whose complaints of stress have been ignored can resign and claim constructive unfair dismissal as well as compensation in negligence and contract. However, such employees can only obtain normal unfair dismissal compensation and not an extra amount for the stress of being dismissed, or the manner of the dismissal. There is a difference between negligence or breach of contract claims for ongoing stress resulting from the workload and stress which results from the events leading to the dismissal in an unfair dismissal claim. The case of Dunnachie v Kingston upon Hull City Council  IRLR 724, HL concerned this issue. Mr Dunnachie had been employed by the Council as an environmental health officer for 15 years and he was bullied by his line manager. The Council failed to recognise that or address the bullying. The House of Lords held that an employee who is unfairly dismissed cannot claim compensation for non-economic loss, including injury to feelings, resulting from the manner of the dismissal under the auspices of an unfair dismissal claim. The compensation awarded in unfair dismissal cases is for economic losses only. This case ended attempts by employees to increase their unfair dismissal claims by between £5-15,000 for extra compensation for non economic loss.
If an employee is stressed and undergoes an examination in what circumstances is the employer entitled to see their medical report?
This depends upon the employment contract. If the employee has clearly given their permission to undergo a medical examination then this will be binding . However, there is a clear distinction between a medical report supplied by the clinical carer (the GP) and a company doctor. The former is covered by the Access to Medical Reports Act 1988 where the employee must give express consent to the report, and the employee has the right to see any medical report should they wish to do so before it is supplied to the company. Reports supplied by the company doctor after an examination for a particular purpose are unlikely to fall within the Access to Medical Reports Act 1988. However, a right to access may arise under The Access to Health Records Act 1990.
In accordance with the Data Protection Act 1998, data consisting of information about an employee's physical or mental health or condition amounts to sensitive personal data for the purposes of the first data protection principle. As such, the processing of such data requires explicit consent. It may, therefore, be necessary for an employer to review any such contractual provision so that the wording makes it clear that the employee is consenting not only to undergo the medical examination but also to the compilation of a medical report and the supply of this data to the employer.
Could an employee claim disability discrimination when absent for a stress-related condition?
Yes, the employee could have a claim if the stress satisfies the statutory definition of a disability and as a result of such condition, they are treated less favourably. The relevant provisions in the Equality Act 2010 define a disability as 'a physical or mental impairment which has a substantial and long term adverse effect on (the person's) ability to carry out normal day to day activities'. Stress could give rise to a mental impairment as the latter includes various forms of depression provided the prognosis is long term and there is appropriate medical evidence. 'Long term' is stated as being for a period of one year or longer. The Act also requires that the employer makes reasonable adjustments to working arrangements so the disabled employee is not at a disadvantage.
The employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows, or is reasonably expected to know, about the employee’s disability.
Assessing whether an employee is disabled can be problematic, particularly in a case of stress related conditions, as some stress is not a disability. In Gallop v Newport City Council  EWCA Civ 1583, CA a council worker was suffering from depression brought on by work related stress. An independent occupational health report concluded that the depression did not meet the legal definition of disability. Relying on this report the council dismissed him. A claim for unfair dismissal succeeded but a claim for disability discrimination reached the Court of Appeal who decided that an employer must make a factual judgment themselves as to whether or not the employee is disabled and although assistance and guidance from an occupational health report was helpful the employer cannot simply 'rubber stamp' an external opinion. The issue was should the employer have actual or constructive knowledge of the facts constituting the employee's disability.
For more information on the definition of disability and normal day to day activities see our Disability discrimination Q&As.
What action can an employer take to avoid stress-related claims?
Employers also need to keep an eye out for stress in particular individuals or for a general stressful environment in the organisation as a whole.
Signs of stress may include deterioration in relationships with colleagues, irritability, indecisiveness, reduced performance, absenteeism, health problems and an increase in consumption of alcohol or cigarettes.
Signs of stress may include employees being disillusioned, high levels of absenteeism, lateness, disciplinary problems, high turnover of employees and reduction in quality of product and level of profits.
Effective and good management with attention to the following points should assist employers in avoiding stress problems.
- Risk assessments.
- Regular appraisals.
- Education and training eg stress management courses.
- Managerial support eg handle changes carefully, keep employees informed, avoid periods of uncertainty.
- Management's approach to stress shows that it is taken seriously and demonstrates an understanding attitude.
- A help line and counselling and an occupational health service.
- Encouragement to employees in seeking medical help.
- Policies and procedures which reflect and reiterate the above points where relevant.
- Provision of a mentoring system.
The annual CIPD Absence management survey 2014 found that popular methods used by organisations to identify and reduce workplace stress include staff surveys, risk assessments, stress audits, flexible working options, and improved work–life balance. More organisations (especially in the private and non-profit sector) report that they have trained line managers to identify and manage stress compared with last year. The public sector is already more pro-active on this.
Guidance and tools on stress management
There is a wide range of online resources and learning materials for employers to help them manage their staff in ways that prevent and reduce stress within the team.
The Health and Safety Executive (HSE) provides a micro site to help businesses prevent stress. The site includes updated advice and guidance, tools, case studies, statistics and Management Standards which provide employers with a risk assessment approach to identifying, exploring and tackling work related stress. The Standards cover six key areas that are associated with poor health and well being, lower productivity and increased sickness absence.
Acas, the Royal College of Psychiatrists, the National Institute for Health and Clinical Excellence (NICE) and TUC have also published information and guidance on stress and promoting mental well-being at work.
Does offering a counselling service guarantee a successful defeat of any stress-related claims?
No, offering a counselling service does not guarantee that an employer will successfully defeat any stress-related claims. A counselling service is a useful element of a complete stress management programme but it is not a panacea by which an employer can discharge its duty of care.
In the Sutherland v Hatton case (see the related Q&A Is any level of stress sufficient to warrant a claim and how forseeable does the disorder have to be?) the guidance suggested that the provision of access to a confidential counselling service for employees suffering from stress is one factor to be taken into account when assessing if the employer had complied with their duty towards their employees and may absolve the employer. However, the Court of Appeal has stated that an employer with such a service can still be held liable for psychological injury to an employee resulting from stress. See Intel Corporation (UK) Ltd v Daw  IRLR 355, CA where the Court of Appeal upheld a decision to award £134,000 to a stressed employee who had made use of counselling services provided by her employer.
In Dickins v O2 PLC  IRLR 58, CA an employee recovered over £100,000 damages from her employer for psychiatric injury resulting from her stressful employment as a finance manager. She told her manager that she wasn’t coping with the job. The manager said he would enquire about a sabbatical and suggested that she contact the O2 counselling service. She already had counselling so didn’t use the company’s service. She was eventually signed her off by her doctor as unfit for work and she never returned, never went back to work and her employment was terminated in November 2003. The case eventually reached the Court of Appeal which stated:
- Provision of a counselling service for staff does not automatically absolve the employer from liability for negligence causing stress.
- Where an employee has suffered a breakdown, the starting point for assessing damages against a negligent employer is that the employee is entitled to recover in full even if they might have suffered the breakdown anyway, as long as the employer's negligence made a material contribution to the breakdown.
If a counselling service is offered to an employee but they refuse to use it, in appropriate cases the employer may be able to argue that the employee’s compensation should at least be reduced a little as they contributed to their own dismissal by failing to use the counselling and advice services provided. (See the Irish unfair dismissal case of Patrick Kinsella v Irish Prison Service UD 1120/2011 MN 1212/2011).
As stress cases become more and more frequent there has been a tendency for the courts to try and limit the scope of such claims. Any other major future developments are likely to result from the growing case law in this area.
Guidance produced with Acas, HSE and Health, Work and Well-being summarising employers' legal obligations to reduce and prevent work-related stress
Guidance presented as three separate leaflets: a framework for line managers, guidance for line managers and advice for HR professionals
Reports on the final phase of research, funded by the HSE, CIPD and Investors in People, into management competencies for minimising workplace stress